Windhoek High Court Judge Orben Sibeya dismissed an application by the Popular Democratic Movement to set aside the government’s decision to lease farms to a Russian billionaire, Rashid Sardarov.
The decision to lease four farms to Sardarov for 99 years was taken by then land reform minister Utoni Nujoma.
Since then, PDM has been pushing for the court to set aside the 2018 decision involving four farms measuring 17 385 1002 hectares.
In the main relief sought, the PDM asked the court to set aside the decision by Nujoma to lease the farms to Sardarov for 99 years.
They further wanted the court to evict COMSAR, a company owned by Sardarov, from the properties and declare the scheme devised by the minister and COMSAR, through which the government became the owner of the said farms and leased them to COMSAR, as unlawful.
They further wanted the court to direct the minister of lands to allot the farms for resettlement. According to them, the minister acted outside his powers when he signed the agreement with COMSAR to lease the farms.
The farms in question are Rianhof, measuring 5 027.8594 hectares; Farm Kameelboom, measuring 5 917.3812 ha; Portion C of Farm Smaldeel, measuring 457.7248 ha; and Farm Wolffgrund, measuring 5 982.1345 ha.
All the farms are situated near Dordabis, southeast of Windhoek and adjacent to his already sprawling estate, Marula Game Reserve.
PDM claimed the government contravened its own laws when it agreed to lease the farms to COMSAR. They argued that the scheme devised by the minister circumvented the Act which gives the government a preferential right to purchase any agricultural land available. Further, the PDM stated what makes matters worse is that they concocted a scheme with COMSAR to purchase the farms, donate them to the government and then lease them for 99 years at a nominal rate.
“I state that the Act prohibits persons from holding the land or acquiring the land as nominees on behalf of or in the interest of any foreign national without the consent of the first respondent (the minister),” McHenry Venaani, the PDM leader, stated in an affidavit submitted to court.
He further stated that the minister is only empowered by law to purchase the land and make it available to landless Namibian citizens and not foreign nationals.
According to the PDM, the minister is empowered to acquire, in the public interest and in accordance with the Act, agricultural land in order to make such land available for agricultural purposes to Namibian citizens who do not own, or otherwise have the use of, agricultural land or adequate agricultural land, and foremost to those Namibian citizens who have been socially, economically or educationally disadvantaged by past discriminatory laws.
Judge Sibeya, however, found that owning and leasing agricultural land are two different processes.
While owning agricultural land by a foreign national is prohibited, there is nothing untoward with the minister, in this matter, leasing the farms to Sardarov. “In my view, the minister is authorised to consent to lease the agricultural land,” Sibeya found.
He further said that the application already failed when PDM neglected to join the sellers of the land in this matter.
He said the original sellers of the land to Sardarov have a direct and substantial interest in the matter and should, therefore, have been joined to the proceedings.
The judge found that a 99-year lease cannot be equated to ownership. “This is so, as firstly, the parties to the lease agreement intended to lease the farms and not to transfer ownership to COMSAR; secondly, the fact that it was agreed that COMSAR would pay the purchase price of the farms, compensate the sellers, and develop the farms, while the registered owner of such farms is the government, demonstrates an intention to lease the farms to COMSAR, with the government as the owner and the ultimate beneficiary of acquiring the farms, with retrospective and prospective improvements thereto, without spending a penny,” Judge Sibeya stated. In the end, he said, nothing prohibited the government from leasing the farms to COMSAR. Judge Sibeya did not make any award as to costs, as he deemed the matter in the public interest. He said that the matter is significant to the people of Namibia, who want to know how a foreign national, who is prohibited from acquiring agricultural land in Namibia, was allowed to lease the said farms for 99 years.
PDM was represented by Senior Counsel Jean Marais, assisted by Advocate Yoleta Campbell; the government by Advocate Gerson Narib, assisted by Eva Shifotoka; and COMSAR by Senior Counsel Wim Trengrove, assisted by Advocate Ramon Maasdorp, instructed by Sisa Namandje.